New document reveals FBI’s role in NSA surveillance program

​Documents provided by the Federal Bureau of Investigation suggest that the FBI has played a part in the National Security Agency’s surveillance operations to a much greater extent than previously acknowledged.

AFreedom of Information Act requestfiled last year by New
York Times journalist Charlie Savage prompted the FBI to release
aredacted versionof an inspector general report from
September 2012 in which the Department of Justice’s internal
watchdog weighed in on the bureau’s use of a federal provision
that permits the collection of foreign communications.

It’s no secret the NSA relies greatly on the rule called Section
702, which comes from the amendments tacked on to the US Foreign
Intelligence Surveillance Act in 2008, to collect internet and
phone data from non-Americans reasonably believed to be located
outside of the country. According to Savage, the FBI “has gradually
become a significant player” with regards to administering the
sweeping-up of signals intelligence, as indicated by the DOJ
Inspector General report published by the Times on Monday.

The 231-page report, Savage noted, contains a single, unredacted
reference to “Prism,” the internet surveillance program used by
the NSA to gather intelligence from major web firms, including
Facebook, Yahoo and Skype, which was revealed publically for the
first time in June 2013 by former government contractor Edward
Snowden. It also contains details confirming the US spy agency
has for more than five years shared its signals intelligence with
law enforcement investigators within the FBI.

Although much of the report has been blacked-out ahead of being
sent to the newspaper, it provides a thorough account nonetheless
of the FBI’s part in SIGINT collection that had previously been
kept from public review. Savage wrote this week that the DOJ’s Office of the
Inspector General released only a two-paragraph statement in 2012 acknowledging that a
report “On Activities Under Section 702” exists and had been sent
to Congress but, “because the report is classified, its
contents cannot be disclosed to the public.”

Within the report are comments from the DOJ’s Inspector General
in which the FBI’s “702 Team” is hailed for its “commendable
deliberation, thoroughness and professionalism,” and
elsewhere its content indicates that the bureau began back in
October 2009 to receive “raw 702-acquired data” that had been
“dual rooted” during the NSA’s collection, “so that
it could retain this data for analysis and dissemination in
intelligence reports.”

That month, Savage explained, “the FBI started retaining
copies of unprocessed communications gathered without a warrant
to analyze for its own purposes.” And by April 2012, the
report reveals, the FBI began “nominating” selectors, or certain
search terms, queried within the NSA-collected database to aid
with its own intelligence reporting.

Previously, leaked documents provided by Snowden to The Guardian
newspaper revealed that, although the NSA and other American
agencies are barred from collecting intelligence on US citizens,
the spy agency has since 2011 been authorized to search SIGINT
data for details on specific individuals, American citizens
included, once those records are whittled down from data
unearthed during queries concerning non-US persons of interest.

US President Barack Obama said in 2013 that a panel put together
by the White House would review the intelligence community’s
surveillance programs, and the committee’s subsequent report
determined that particular aspects push the programs "close
to the line of constitutional reasonableness."

“Although US persons may not be targeted under Section 702,
communications of or concerning US persons may be acquired in a
variety of ways,” a portion of the report reads. “An
example is when a US person communicates with a non-US person who
has been targeted, resulting in what is termed ‘incidental’
collection. Another example is when two non-US persons discuss a
US person. Communications of or concerning US persons that are
acquired in these ways may be retained and used by the
government, subject to applicable rules and requirements. The
communications of US persons may also be collected by mistake, as
when a US person is erroneously targeted or in the event of a
technological malfunction, resulting in ‘inadvertent’ collection.
In such cases, however, the applicable rules generally require
the communications to be destroyed.”

Privacy advocates and digital rights proponents have raised
concerns about the program nevertheless, however, with Cindy
Cohn, the legal director of the Electronic Frontier Foundation,
writing last year that the review group’s
recommendations for the White House still fell short of what
could be accomplished to ensure proper protections are put in
place for the communications by Americans.

“The board skips over the essential privacy problem with the
702 upstream program: that the government has access to or is
acquiring nearly all communications that travel over the
internet,” she wrote. “The government's collection and
search of Americans' communications without a warrant or
individually approved court order is barred by the Constitution
and must be stopped."

According to Savage, the Times’ legal team may choose to
challenge the 2012 inspector general report in court in the hope
of having some of the redactions reversed before its release is
reconsidered.